When does Parody go too far?
A review of the equilibrium needed between the legal protection of intellectual property rights and our freedom of expression.
We must balance two concepts: providing the highest level of possible market opportunities in our world and respecting each others’ human rights.
P
arodies, they are everywhere. Expressed as political satire or sometimes in humorous depictions of household names. Nevertheless, the point of a parody is to imitate, to mimic the previous artform. In terms of Legal matters, it’s the re-use of intellectual property, in order to reach novel comical effect or ridicule.
Initially, parodies can provide positive value such as a critical perspective on a situation or just to provide worthy humour to us, lightening the mood of otherwise heavy subject matters.
But, where should we draw the line? When does copying become an obvious form of plagiarism? A legal issue? When are the author’s moral rights infringed?
Obviously, the line between the two is difficult to distinguish, nevertheless, that does not mean that an obvious compromise between the two cannot be found. The “perfect” solution would be to have parodies, that do not excessively offend the original authors.
Satire
Focusing on satire, a more intense and political type of parody, there are distinct pros and cons that can obviously arise from such a genre. “The Daily Show”, the famous American satire of the political news, spurs obvious divergences in opinion and triggers a wide spectrum of reactions across America. Indeed, by combining a wide variety of hosts and correspondents, the “Daily Show” managed to provide an alternate version of the news, one combining humor and usually liberal values.
Their goal however is: to provide a more human version of politics, a topic that unfortunately fails to provide positive feelings to many lately.
Is the Daily Show, Legal?
Definitely, by using the “Daily Show” as one example, one can firstly see two type of very obvious breaches.
Firstly, the pure form of copying which is used when small clips, fragments or videos are edited within the show. Those are usually the property of other broadcast channels which therefore have the copyright over such material.
Secondly, the possible derogatory treatment that may be sometimes used to the prior protected right such as editing, cutting, modifying background voices, etc. All those techniques are obviously fairly familiar to us and we can all relate to them, however in some situations those obviously may go against the artist’s interest which are considered valuable moral rights.
In the case of Snow v Eaton Centre Ltd, the claimant held that the ribbons attached on his sculpture of a flock of geese in the Eaton Centre in Toronto, constituted derogatory treatment. The piece having for purpose to represent birds flying free, restricting them with ribbons was in the eyes of the author against the entire moral of his art.
The moral rights were indeed infringed according to Ontario High Court of Justice and the ribbons were removed. CDPA s80 (2)(a) defines the “treatment” of a work as “any addition to, deletion from or alteration to or adaptation of the work”.
Another striking example of political satire is the show “Les Guignols” in which political news across France are represented by Muppets and are dubbed with relatively ridiculous voices.
The point of this show is to obviously provide a strong critique normally of the government in place, having started all the way back from 1988. This satire which is indeed very critical was however accepted as part of French culture with many important political figures themselves advocating for the fact that this show is the ultimate representation of freedom of speech and democracy in France as it simply attacks fairly and equally every single political figures.
When in late July 2015, the four authors Lionel Dutemple, Julien Hervé Philippe Mechelen and Benjamin Morgaine were dismissed and that the rumour of the satiric show being cancelled began. Many figures stood out for its continuation emphasising the need to have caricature available to all. Alain Juppé for instance, updated on twitter his profile picture to his Muppet counterpart, adding a note at the creators of the Puppets: “I like seeing myself as a Muppet, we need them.”
For instance, Pro Sieben Media v Carlton Television justifies copyright infringement as fair dealing, the defendant had indeed copied an extract of Pro Sieben Media’s interview but could justify its copying since the Carlton program was created to criticise review or reporting current events and that was beneficial according to the Court of Appeal.
Now one point that is also interesting to remark is the fact that those last two shows were hosted on a private TV channel: Comedy Central and Canal+. Taking Canal+ for instance, the first private French channel, former President Francois Mitterrand on 21 June 1982 had already stated that:
“A fourth channel will shortly be implemented. It will focus more on retransmissions and also cultural issues. This channel will be financed neither by fees and neither by advertising”
As we know a private channel not having to follow as many requirements, can obviously mean less censorship which leads to an obvious correlation of more freedom of expression.
Regarding this concept, the fine line to remember and keep in mind from an intellectual property point of view is that: if the censor or strict liability effect of the copyright undermines to a too large extent one of our fundamental human rights. For instance, if an artist wants to copy a work which is already protected by copyright law, he/she must understand that the possibility of facing a law suit for breaching a copyright is indeed realistic.
Therefore, it seems that in our now modern 21st century, private channels may enjoy a higher level of discretion or less depending on their governance. What seems to be clear is that restricting the viewing as to impose on a fraction of the public is one form of balance that seems adequate.
The individuals that will seek parody and satire may therefore have it available on demands but the flow of this relatively and most of the time non serious information is not constant and on public television. Bearing this in mind, one can definitely expect to see much more less risky of offensive materials which may trigger lawsuits in public tv channels as those could be very exposed public copyright breaches. Limiting the exposure of a copyright breach is also one way of defending one’s self against it.
But one area that definitely is interesting to follow in the next years and hard to limit indeed is definitely Internet. With now music services, video streaming and many entertainment services relying on internet. The intellectual property aspects of such services along with their distribution must be updated. One area that experiences massive growth in the last decade is lip syncing or dubbing video in order to edit the audio and provide the video with a different experience.
Some of these obviously do get obvious copyright breaches and are therefore removed. We have all witnessed typical YouTube videos being deleted for the exact reason of copyright infringement. However, there seems to be a new trend arising, one that seems to push for a protection of what we now call memes or ridiculous obvious video editing when available online as the choice to view them is always up to the user. If therefore the video can provide a large area of satisfaction and is of relevance to the current political situation.
For instance:
Here, we see a parody video depicting Hillary Clinton and Trump singing a duet to the tune “The Time of my Life” during the second round of presidential debate. Is it obviously semi offensive towards the candidates themselves? Obviously. Does it have a strong purpose and can be considered a copyright of its own? Probably, since it does provide visual satisfaction and humor to individuals around the United States and the world definitely. It may therefore have a fair chance at staying available on the ground of being indeed satirical.
The interesting point to bear in mind with copyrights is that the number of actions are not necessarily limited as this would restrict the obvious amount of protections available, however the defendant who may face a possible copyright suit may use legal defences such as asserting fair use.
Indeed, successfully affirming fair use can serve as a positive defence to a copyright infringement violation. Fair use safeguards specific types of usage of intellectually-protected works such as notably satires, parodies, criticism, or any strong form of comments towards the part.
In considering whether the use of a copyright piece is fair, the court will consider a number of different factors. One notable factor is obviously the amount of the original work used, copying around 5 percent of a work is definitely not the same as using 50 percent and more. Secondly, the court may also focus on the consequences that the second piece may bring upon the original work such as its financial impact or reputation.
In conclusion, relating to parodies, it seems that the correlation is to always find the right balance between allowing companies or arts to express the artist’s freedom of expression and understandable freedom of speech while not exercising any negative effect that would overcome the positive influence of having such medias available in our societies.
If a parody becomes overly negative receiving intense criticism? Is it still a parody, when the original goal was to actually provide a different humorous alternative? It seems that reaching a negative impression upon viewers would be the obvious opposite goal intended.
Bearing this in mind:
The perfect legal parody is one who satisfies many by offending few, giving both our liberty of expression and moral rights of authors, their full independence in our democratic capitalism market.
